Much has been written the last few days about abortion. I guess I started the newest wave with Obama Swings Right on Abortion. John Campanelli wrote a well-reasoned Response to "Obama swings right on abortion". Then it was off to the races, with "Clinton swung right on abortion!," "Obama's faith-based mental abortion of FISA's women," and more. [links make the intro too long. Look for the "abortion" tag.]
Then the conversation changed from Obama to abortion laws in general, with Obama Does the Right Thing on Abortion, Mercy Abortions: Let me preach to the choir,abortion and democrats, The Most Radioactive of Topics - Abortion, Debunking The Abortion Reduction Plank Proposal, Pro-Choice Leaders Refuse to Work With Pro-Life Democrats.
Every single diary contributed something to the conversation. Unfortunately, every single diary also missed the essential truth of abortion laws- they function in real life, not theory, and they are intended to chill all abortions, not merely define some as unlawful.
First, a bit of background, just to let you know where I'm coming from. I have been a prosecutor, and understand the amount of power such a position entails. What they say about grand juries and ham sandwiches is true. In some states you don't even need a grand jury to charge somebody with a crime, just a pen. I have also been a criminal defense attorney, and know how badly the deck is stacked against those charged. I spent a few years running a law enforcement agency, so know just how near-unlimited the power of law enforcement is to investigate what it deems to be a crime. And finally, I now make my living defending health care providers against the government. I have some idea of what I speak.
Okay, on to the meat of the matter.
Much of the discussion here has been about laws, what they should say, how far they should go. One recent diary, Pro-Choice Leaders Refuse to Work With Pro-Life Democrats, suggested " adding an abortion reduction plank to the Democratic Platform." The conversations, as they are wont to do, ultimately centered on just when the government should step in and make abortion illegal. You saw comments like this:
I think that you can meet in the middle
I don't have a problem with an elective abortion until the fetus can live outside the womb. After that point I only support abortion in cases where the fetus is suffering from severe birth defects incompatible with life outside the womb or where the mother's life is in danger.
and this:
I have always considered myself pro choice. I have always felt that there was a line where a fetus became viable and abortion after that was no longer an option of choice(excluding harm to the mother, which is a different issue). Over the past week I have been repulsed by the complete arrogance and hatred that came to anyone that had any variant opinion on abortion then "anytime I want one i can have one." I think myself, and the majority of Americans are pro choice, but do not believe it is an absolute right with no limitations, like most rights. I also don't believe the second amendment allows citizens to own nuclear weapon, there are limits,and those are imposed by society.
These seem like perfectly reasonable comments, don't they? They try to draw the distinction between killing a non-viable fetus and what many see as an "unborn baby," on that might survive outside the womb, but more important, LOOKS like a little human being. So, what is wrong with that point of view?
It is naive, that is what is wrong with it. You see, what we are really talking about are not words typed in a book, but actual criminal laws. These are laws that would be used to prosecute doctors for performing abortions. In fact, those laws are on the books now. They are just not enforceable due to Roe v. Wade and its progeny. Let's start the conversation by looking at a few of these, shall we?
At least 16 states still have pre-Roe anti-abortion laws on their books. These flat-out make abortion illegal. Changing the date you can perform an abortion won't change the enforceability of those laws. But what about the laws that have been tailored as the Supreme Court rulings shape the law?
Alabama says:
Abortion of viable fetus must be performed by a physician, in a hospital, with concurrence of 2nd licensed physician as to viability
That seems simple, doesn't it? Well, not really. Who decides the fetus is "viable"? Contrary to what you might think, it is not the doctor performing the procedure, or even a panel of physicians. The first person who gets to make that decision is a cop or a prosecutor. The next person who gets to make that decision is a juror. Sure, they will have expert testimony to help them make their decision, but they will not be bound by it. And remember, the prosecutor gets to call her own expert. Viability is normally at about 35 to 37 weeks, without medical intervention. But what about with medical intervention?
James Elgin Gill was born at 21 weeks five days, and Rumaisa Rahman was born weighing only 8.6 ounces. Do those set the lower limits for viability? I bet you said "no." But if an expert says "yes," and a jury agrees, off to jail with you, doctor. You see, in Alabama that act in punishable by:
Fine of $100 to $1,000 and imprisonment to 12 months; abortion of viable fetus: Class A felony
Connecticut is not Alabama. Things must be better there, right? Well, not really:
Pregnant woman's decision to terminate pregnancy before viability-after viability, only to preserve life or health of pregnant woman
Again, you have the same "viability" question.
Put yourself in the place of the doctor. In your expert medical opinion the fetus is not viable. But you know your opinion and $3.75 will get you a cup of Starbucks coffee. The ultimate decision will be made by 6 or 12 layman on a jury. If you win, it just costs you hundreds of thousands of dollars, destruction of your reputation, and hundreds of hours of your time. If you lose, you lose your medical license and go to prison. What do you do?
Hawaii defines "legal abortion" as:
Terminate pregnancy of nonviable fetus
Idaho laws raise the next question, what does it really mean "preserve the life of the mother"?
Third trimester: must be necessary to preserve life of mother or fetus and M.D. must consult another corroborating physician.
[Just in case you're curious, "preserve the life of ... fetus" is not a typo. Sometimes abortions are performed with multiple fetus pregnancies to save the life of one or more of them, at the cost of losing another.]
It is the doctor's opinion that the mother's life must be saved, or that both twins can not survive, but one can. But the doctor knows the value of his opinion once he gets to court. The prosecutor's expert can trot out stories of women who survived the same condition, or twins who both lived outside the womb. Sure, they are rare, and a lot more died, but it has happened. And remember, you're in Idaho, and your jury pool comes from Idaho. If you're wrong, you AND THE MOTHER can go to prison:
Felony; fine to $5,000 and/or imprisonment 2 to 5 years; mother, fine to $5,000, and/or imprisonment 1 to 5 years
What do you do?
Illinois. Hey, Illinois is a Democratic state. Things must be better there, right? Wrong:
If fetus nonviable and abortion not necessary to preserve mother's health, M.D. must certify nonviability; if fetus is viable, abortion must be medically necessary to preserve life, health of mother; M.D. must certify this necessity
and the penalty?
Fine to $1,000 and/or imprisonment 3 to 7 years for M.D. (Class 2 felony); if fetus could have survived with or without support and M.D. does not use method to keep it alive: Class 3 felony
I hope you are starting to see the point. Just talking about the law, in a vacuum, is moving air in waves, with little practical effect. These laws are INTENDED to chill abortion. If you are a doctor, you will shy away from anything but the clearest easiest call of all.
Understand, first, that the anti-abortion movement will use the law any way they can to stop abortion. In Florida, they could not convict James Scott Pendergraft of performing illegal abortions. How could he? An arsonist burned down the clinic. So the United States Attorney went after him for extortion. His alleged extortion? Threatening to file a lawsuit against the County, and then sitting down at a settlement conference to attempt to resolve the matter. He spent seven months in jail before his conviction was overturned because:
History has taught us that, if people take the law into their own hands, an endless cycle of violence can erupt, and we therefore encourage people to take their problems to court. We trust the courts, and their time-tested procedures, to produce reliable results, separating validity from invalidity, honesty from dishonesty. While our process is sometimes expensive, and occasionally inaccurate, we have confidence in it. When a citizen avails himself of this process, his doing so is not inherently "wrongful."
Moreover, in this case, we are not dealing with a typical threat to litigate. Instead, we are dealing with a threat to litigate against a county government. The right of citizens to petition their government for the redress of grievances is fundamental to our constitutional structure. See U.S. Const. amend. I.7 A threat to file suit against a government, then, cannot be "wrongful" in itself.
[just to get a sense of how awful this prosecution was, check this out:
Pendergraft and Spielvogel also argue that the prosecutor injected racial prejudice into his closing argument by twice stating that Pendergraft, who is black, "shucked and jived" on the witness stand.
]
Enough of that. How are States using abortion laws to target doctors?
In Kansas, Dr. George Tiller was ordered to turn over records so a "citizen's grand jury" could be combed through looking for a crime. Just last week a second "citizen's grand jury" refused to bring charges against him. What is a "citizen's grand jury"? Kansas is one of several states that allows a grand jury to be seated by a petition drive. These laws were originally enacted to give people the ability to act against corrupt politicians, but anti-abortion crusaders are using them to their advantage. There was a good result in this one, but what if the cast of characters changed, even a little?
Following Wednesday's decision, an anti-abortion group said the government isn't aggressive enough in limiting Tiller's practice.
Kansans for Life, which led the petition drive for the grand jury, blamed Sedgwick County District Attorney Nola Foulston for not giving the grand jury proper legal guidance.
Mary Kay Culp, Kansans for Life's executive director, said her organization would work to help re-elect Phill Kline, an anti-abortion advocate, as district attorney in Johnson County and to defeat Foulston, who is up for re-election here.
"The law doesn't need to be changed. The enforcers of the law need to be changed," Culp said.
The point here is that we need to consider more than the mere letter of the law. Every law has a corona effect, a halo around it that extends it effect through fear and doubt. In some fields, that is a great thing. "Hey," you might say, "that girl LOOKS 18, but what if she is really 16? I better not." That is a good corona effect. But when it comes to abortion, the corona effect is "what if a jury of laymen, with or without an agenda, disagree with my medical expertise," and "what if the prosecutor wants to run for Governor, and needs my hide on his campaign signs?"
Keep this corona effect in mind when you start parsing terms like "viability" and "health." Remember, the goal of the law is not just to punish what is defined, but to terrify the doctors into refusing to do that which is not defined.
Remember, ANY TIME we agree that the decision to have a medical procedure should be between anybody but a woman and her doctor, we invite a chilling effect far beyond that which is stated. Their goal is not to save the lives of viable fetuses from healthy mothers. Their goal is, has, and always will be, to stop abortion in every way possible.